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Implications for Mental Health Laws Laws 2015, 4, 125–138; doi:10.3390/laws4020125 OPEN ACCESS laws ISSN 2075-471X www.mdpi.com/journal/laws/ Article Decision-Making, Legal Capacity and Neuroscience: Implications for Mental Health Laws Bernadette McSherry Melbourne Social Equity Institute, University of Melbourne, 201 Grattan Street, Parkville, Victoria 3010, Australia; E-Mail: [email protected]; Tel.: +61-3-9035-7434 Academic Editor: Kelly Purser Received: 31 March 2015 / Accepted: 20 April 2015 / Published: 27 April 2015 Abstract: Neuroscientific endeavours to uncover the causes of severe mental impairments may be viewed as supporting arguments for capacity-based mental health laws that enable compulsory detention and treatment. This article explores the tensions between clinical, human rights and legal concepts of “capacity”. It is argued that capacity-based mental health laws, rather than providing a progressive approach to law reform, may simply reinforce presumptions that those with mental impairments completely lack decision-making capacity and thereby should not be afforded legal capacity. A better approach may be to shift the current focus on notions of capacity to socio-economic obligations under the Convention on the Rights of Persons with Disabilities. Keywords: legal capacity; mental capacity; decision-making; mental health laws; neuroscience 1. Introduction Laws that enable the compulsory detention and treatment of individuals with severe mental impairments [1] have been enacted in many countries, including recently in China [2]. While the criteria for compulsory detention and treatment differ across jurisdictions, in general, there must be evidence of “mental illness”, generally defined according to certain symptoms, a need for treatment and some form of risk of harm to self or others [3]. Such mental health laws place decision-making about treatment primarily in the hands of clinicians, rather than the individual concerned, thereby enabling what is generally termed “substituted” decision-making. Some jurisdictions have mental health laws which also require evidence that the person concerned is unable or lacks “capacity” to consent to admission and/or treatment [4]. There have been calls by Laws 2015, 4 126 some scholars to focus on “capacity” as the key criterion for compulsory treatment, either through “fused” guardianship and mental health laws [5–7] or, at the very least, via revised mental health laws [8–10] based primarily on a lack of decision-making capacity. In the clinical realm, there has been an increasing focus on explaining mental impairments in biogenetic terms. The Director of the National Institute of Mental Health in the United States, Thomas Insel, has stated that “[m]ental disorders are biological disorders involving brain circuits that implicate specific domains of cognition, emotion, or behavior” [11]. He argues that there is a need to move away from diagnostic categories based on symptoms. This neuroscientific approach, as explored below, is not without its critics, but biogenetic explanations for mental impairments may help support the move by certain scholars to argue for mental health laws based primarily on a lack of decision-making capacity. That is, if mental impairments are in fact biological disorders involving brain circuits, the argument can be framed in terms that decision-making may be affected, hence the need for substituted decision-making regimes. At the international level, however, recent developments in human rights law have challenged not only the scope, but the very existence of mental health laws and substituted decision-making regimes in general [12,13]. Article 12(2) of the United Nations Convention on the Rights of Persons with Disabilities (CRPD), which 159 States have signed and 154 ratified [14], recognises that “persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life”. Such a recognition of universal legal capacity has raised the issue of whether a perceived lack of or impairment of mental capacity, which the United Nations CRPD Committee refers to as “the decision-making skills of a person” ([15], para. 12), should be used as the basis for restrictions in civil law areas relating to compulsory detention and treatment for mental impairments. This article explores the tensions between clinical, human rights and legal concepts of capacity. I argue that whatever neuroscience may have to offer in terms of enhancing treatment options for those with mental impairments, compulsory detention and treatment should be highly circumscribed and continually challenged on the basis of human rights arguments. Capacity-based mental health laws, rather than providing a progressive approach to law reform, may in fact be buying in to stereotypes and paternalistic assumptions about those with mental impairments. There is a need to ensure that the preferences of those with mental impairments in relation to their treatment and care are heeded and that recent moves towards supported, rather than substituted, decision-making regimes should be given priority. Further, changing the current focus from notions of capacity to socio-economic obligations under the CRPD may assist in highlighting the need for voluntary rather than compulsory treatment. The first section explores what is meant by legal capacity, how it differs from mental capacity and what this means regarding current debates concerning the scope and existence of mental health laws. The second section then looks at what neuroscience may mean for these debates. The final section explores how a shift away from compulsory detention and treatment towards voluntary treatment might be facilitated. Laws 2015, 4 127 2. Legal Capacity and Decision-Making This section explores what is meant by the terms legal and mental capacity and the links between them. I argue that recent interpretations of the CRPD are challenging the way in which individuals with severe mental impairments have been viewed as persons under the law as well as the way in which such persons are treated in the mental health sector. 2.1. Legal Capacity and the Convention on the Rights of Persons with Disabilities The Council of Europe’s Commissioner for Human Rights defines “legal capacity” ([16], p. 7) as “a person’s power or possibility to act within the framework of the legal system”. I have argued previously that there are two constituent elements to legal capacity [17]. The first refers to “legal standing” in the sense of being viewed as a person before the law; the second to “legal agency” or what is sometimes referred to as “active legal capacity”. At various times in different societies, certain groups have been viewed as not having legal personhood or standing. The extinction or suspension of legal standing, sometimes referred to as “civil death”, was once seen as a necessary consequence of conviction. Similarly, women, children under the age of majority and persons with mental and/or intellectual impairments have been and continue to be viewed in some societies as not having legal standing. I will return later to the example of how women’s legal standing and agency have been viewed. Legal agency refers to the ability to act within the framework of the legal system. Article 12(3) of the CRPD states that “States Parties shall take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity” [14]. The reference to exercising legal capacity ensures that legal agency is also encompassed by the concept of legal capacity within the CRPD. It is this aspect of legal capacity that has been the focus of recent writing in relation to those with mental and intellectual impairments. Gerard Quinn and Anna Arstein-Kerslake ([18], p. 42) have conceptualised the exercise of legal capacity in terms of it being both a sword and a shield. Used as a sword, the exercise of legal capacity reflects an individual’s right to make decisions for him or herself and to have those decisions respected by others. Such decisions include the right to marry and to have a family, the right to enter into contracts such as to buy a house or to be employed, the right to make a will and so on. Used as a shield, the exercise of legal capacity refers to the power of the individual to stop others from purporting to make decisions on his or her behalf. Article 12 thus makes it clear that those with disabilities have legal capacity on an equal basis with others. This must be presumed. The question then is: can legal capacity ever be removed and, if so, in which circumstances? Can a person’s purported lack of “mental” capacity be sufficient? The next two sections explore what is meant by mental capacity and the link it has traditionally had with how individuals with mental impairments are treated within the framework of the legal system. 2.2. Mental Capacity and Decision-Making As previously pointed out, the United Nations CRPD Committee ([15], para. 12) defines “mental capacity” as “the decision-making skills of a person”. Gareth Owen and colleagues ([19], p. 81) have Laws 2015, 4 128 noted that the “conceptual literature on mental capacity is complex because it mixes philosophical, legal and psychiatric vocabularies”. Traditionally, an assessment of decision-making skills has focused on a person’s cognitive abilities. For example, the Mental Capacity Act 2005 (England and Wales) takes a cognitive approach to displacing legal capacity and enabling substituted decision-making. Section 2(1) of that Act states that “a person lacks capacity in relation to a matter if at the material time he [or she] is unable to make a decision for himself [or herself] in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”. Section 3(1) then sets out that a person is unable to make a decision if that person is unable— (a) To understand the information relevant to the decision, (b) To retain that information, (c) To use or weigh that information as part of the process of making the decision, or (d) To communicate his decision (whether by talking, using sign language or any other means).
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